Temperature Testing of Employees - A Hot Topic

With the move into Phase 1 of businesses reopening and employees returning to work, one of the risk assessment tools being considered by employers and other organisations is the use of temperature testing to determine if an individual has a high temperature or fever, this being one of the symptoms of COVID-19.

Temperature testing gives rise to a number of concerns for employers, including the effectiveness of temperature testing in preventing the spread of the virus, compliance with data protection and employment law issues. These concerns are examined below in more detail.

1. Use of Temperature Testing 

The Irish Government published a Return to Work Safely Protocol (the “Protocol”) on 8 May 2020. This document is intended to support employers and workers in putting measures in place that will prevent the spread of COVID-19 in the workplace.

The Protocol, in dealing with Implementing the COVID-19 Prevention and Control Measures to Minimise risk to Workers, outlines obligations on both employers and employees in relation to temperature testing. It provides that employers must “implement temperature testing in line with public health advice”, and workers must "complete any temperature testing as implemented by the employer and in line with public health advice". Therefore it is clear that public health advice should guide employers on the use of temperature testing in the workplace. But what is the public heath advice? 

1.1 Public health advice

International public health commentary on the issue of temperature testing is not overly instructive. 

In Situation Report 65 issued by the World Health Organisation (“WHO”) on 25 March 2020, the WHO referenced the following as a measure that could assist in creating a COVID-safe workplace and prevent transmission of the disease between employees:-

“Check the body temperature of employees daily so that employees with fever don’t come to work”.

The "Getting Workplace Ready" advice document issued by WHO does not, however, include any recommendation on the use of temperature checks as a preventative measure in the workplace.

The European Centre for Disease Control has referred to temperature checking in the context of screening at airports and states:- 

“There is evidence that checking people at the airport by reading their skin temperature (known as entry screening) is not very effective in preventing the spread of the virus, especially when people do not have symptoms.”

The HSE currently does not recommend temperature testing in the workplace, with the exception of certain healthcare settings. The reasons for this were outlined by Chief Medical Officer Dr Tony Holohan in March of this year and include that:

(a) Temperature testing has not proved to be effective in past outbreaks (e.g. SARS); and

(b) It has unintended consequences as people with fever are more likely to conceal this by taking anti-pyretic (i.e. paracetamol). This can give a false sense of security (showing a negative simply because the temperature has been suppressed).

Therefore, until a further update is issued by the HSE, the current position is that temperature screening is not part of the public health advice in Ireland at this time. This does not prevent employers putting such screening in place, particularly if it is made available on a voluntary basis, however the absence of a public health recommendation may make it more difficult to justify and harder to implement on a mandatory basis. 

2. Data Protection 

As temperature screening involves processing personal data of individuals, employers must be aware of their obligations under data protection legislation. 
Body temperature is personal data concerning health and it therefore is “special category” data under General Data Protection Regulation (GDPR). The processing of special category data is subject to more restrictions than apply to other personal data and one or more of a number of specified grounds must be relied upon for this processing to be compliant with data protection legislation, as outlined in Article 9 of the GDPR.

The Data Protection Commission (“DPC”) has issued guidance regarding the processing of special category data in response to Covid-19. It has noted that grounds that may apply are:-

(a) Article 9(2)(b) GDPR, where processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment law, which in this instance would include the obligation to provide a safe place of work under the Safety, Health and Welfare at Work Act 2005; and

(b) Article 9(2)(i) GDPR and section 53 of the Data Protection Act 2018, which allow processing where necessary for reasons of public interest in the area of public health. The Data Protection Commissioner has indicated that it is likely that these provisions would permit the processing of personal data (including health data) where organisations are acting on the guidance or direction of public health authorities.

Any processing must be necessary and proportionate, and suitable safeguards must be implemented to protect the data subject's rights, such as limitations on access to the data, strict time limits for erasure, minimising the amount of data processed and adequate staff training. Confidentiality is also important, and any communications to staff about the possible presence of COVID-19 in the workplace should not generally identify any individual employees.

Employees should be made aware of the processing of this data and informed of the purpose of the processing and for how long the data will be retained. Decision making processes regarding the implementation of these measures should be documented. Consideration should also be given to conducting a Data Protection Impact Assessment if the data is being processed on a large scale.

3. Employment Law Issues 

The implementation of temperature screening checks has the potential to give rise to a number of employment law issues. What if an employee registers a high temperature, should he/she be asked to go home? Are they then on sick leave? What should the employer do if an employee refuses to take the temperature test? These questions give rise to issues relating to the right to work and the obligation to provide a safe place of work, the right to pay, the nature of an enforced absence and the recourse (disciplinary or otherwise) available to an employer if an employee refuses to submit to a temperature test. Navigating through these issues can be challenging for employers.

Conclusion 

Reliance upon temperature screening as a risk assessment mechanism to identify persons potentially infected with COVID-19 is far from clear-cut. The Protocol suggests that public health advice will issue to address the use of temperature testing and this guidance, once available, may provide welcome instruction for employers in taking measures to protect their staff and workplaces. Employers introducing temperature testing should ensure that they have appropriate policies in place to notify and explain the practice to employees and others attending their premises. 

For further information on temperature testing in the workplace, contact Lorraine Smyth or Brian Murphy from the ByrneWallace Employment Law Team.

If you would like to learn more about other employment law issues related to reopening your business and employees returning to work, join us on Tuesday, 19 May, as we host a webinar on "Working Out How to Return to Work". Click here for more details. 

Please note that the content of this summary does not amount to professional advice. Legal advice should be sought in respect of specific queries.The COVID-19 situation is evolving rapidly and this update is provided on the basis of information available as at 18 May 2020.